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in the interest of the Indians and, as the Congress of the United States might decide, not taking anything away from them, but being careful to give to the Indians all of their property, I think that that is clearly decided in the One hundred and eighty-seventh United States Reports in the Lone Wolf case and in subsequent cases. If you have any cases to the contrary I have an open
it. Mr. CARTER. You mean that they have the right to do that without any reference to any agreement at all with the Indians ?
Mr. HASTINGS. An agreement is no more than an act of Congress, and Congress has the right-I do not mean the moral right, but it has the legal right-to repeal trusts, to repeal agreements. Congress has no right to take property away, but to administer, to make rolls and to close the rolls, to say when those rolls shall be closed; I „may not agree with that as a moral proposition; perhaps Congress ought not do that, but as a legal proposition I contend that that has been decided by the Supreme Court of the United States time after time and, so far as I know, they never have decided to the contrary.
Mr. BALLINGER. There is but little difference between myself and Mr. Hastings, except that the Lone Wolf case goes a little further than the statement that Mr. Hastings made, as I recall it, and the decision that I am now going to quote from will fully sustain the position just taken by Mr. Hastings, except that it goes a step further, in my judgment. Now, I read from the decision, the latter part of the decision in the case of the Mille Lac Indians v. the United States (229 U. S.). I may state briefly the question involved in that case. The Mille Lac Reservation was one of the reservations ceded to the United States under the agreement of 1889. Congress instead of disposing of the property on the Mille Lac Reservation, as the agreement of 1889 provided, passed two resolutions providing for its disposition under the homestead laws of the United States and under the preemption laws of the United States, diverting it from the purpose and intent of the agreement of 1889. Suit was brought to recover the value of that land from the United States. Not a dollar of the proceeds ever went into their trust funds. Now, I want to say in that connection that the Red Lake Indians, who are claiming the Red Lake Reservation exclusively, took their share of the judgment obtained in that case, and are participating, as are all the other Indians, in the division of the judgment from the Mille Lac lands. In the concluding portion of that decision the court says this:
As respects other lands in that tract—that is, such as were not within the terms of the proviso—we are of opinion that they came within the general provisions of the act, and were to be disposed of thereunder for the benefit of the Indians, in like manner as were the ceded lands in the other reservations, of which it was said in Minnesota v. Hitchcock (185 U. S., 373, 394): “The cession was not to the United States absolutely, but in trust. It was a cession of all of the unallotted lands. The trust was to be executed by the sale of the ceded lands and a deposit of the proceeds in the Treasury of the United States to the credit of the Indians, such sum to draw interest at 5 per cent.”
As above stated, the lands not within the proviso were disposed of, not under the act of 1889, but under the general land laws; not for the benefit of the Indians, but in disregard of their rights. This was clearly in violation of the trust before described, and the Indians are entitled to recover for the resulting loss. In principle it is as if the lands had been disposed of conformably to the act of 1889, and the net proceeds placed in the trust fund created by it, and the Government then had used the money,
not for the benefit of the Indians, but for some wholly different purpose. That the wrongful disposal was in obedience to directions given in two resolutions of Congress does not make it any the less a violation of the trust. The resolutions, unlike the legislation sustained in Cherokee Nation v. Hitchcock (187-U. S., 294, 307), and Lone Wolf 2. Hitchcock (187 U. S., 553, 564, 568), were not adopted in the exercise of the administrative power of Congress over the property and affairs of dependent Indian wards, but were intended to assert, and did assert, an unqualified power of disposal over the lands as the absolute property of the Government. Doubtless this was because there was a misapprehension of the true relation of the Government to the lands, but that does not alter the result.
Mr. CARTER. Was this a suit to recover for the wrong that had been done the Indians ?
Mr. BALLINGER. Yes, sir.
Mr. CARTER. I think that is in exact conformity with Mr. Hastings's statement. None of those homestead allotments had been canceled. The Indians sought not to have the homestead allotments canceled, but sought to be paid for that land that was taken in that way. I think that conforms exactly to Mr. Hastings's statement that Congress had the power under the decisions to do as it pleased with this tribal property, but just as I have stated several times in the past, that may result in a suit being brought by the Indians for recovery for the wrong that has been done.
Mr. BALLINGER. Mr. Carter, you are absolutely right.
Mr. CARTER. If the Indians went to court to have it determined, then they may get compensation. The point does not go to the power of Congress to change the agreement and make a different distribution than that provided for by the agreement, but the point goes to show that the Indians can recover if a wrong is done them by that power which Congress exercised.
Mr. HASTINGS. I was called to the phone and did not hear the discussion as it was going on. I have not read the decisions of the Supreme Court of the United States for the past two or three years, but I would be surprised with any decision of the Supreme Court of the United States that did not say that Congress had the plenary power to wind up any Indian affairs, divide up the land, and distribute their money as in the judgment of Congress would be to the best interests of the Indians, provided that nothing was taken away from them. That is the position I take. I say that it makes no difference in law whether there have been previous agreements or not. I not do suppose that there is any tribe that has not had agreements and treaties made with the Government of the United States. Some of them run back as far as a hundred years. Now, I will assert that the decisions hold that those treaties are no more than acts of Congress, and agreements are no more than acts of Congress, and that treaties, agreements, and acts of Congress can all be repealed by the Congress of the United States and new legislation enacted, provided that the whole estate is administered and nothing taken away from it.
Mr. BALLINGER. Let me make a few observations here. I think we practically agree. I think it is universally agreed that morally Congress has no right to do that.
Mr. HASTINGS. I have tried to say that I do not agree that morally they could do that. I tried to emphasize that.
Nr. BALLINGER. Mr. Chairman, according to recent pronouncements from high sources, moral obligations are of greater import than legal obligations.
The CHAIRMAN. We are not considering that at the present moment.
Mr. BALLINGER. Now, I want to suggest this to my friend. An agreement may be changed prior to the time that property rights attach, but when property rights attach, then I submit that Congress, the Government of the United States, a party to the agreement, can not change it. Otherwise it would be a unilateral agreement. Now, in this case at point there was an agreement creating a perfect trust. A provision was made for the cession of land to the United States in trust to be disposed of specifically as provided in the agreement creating the trust. Now, when that land was ceded to the United States in trust a trust was created, and the property was surrounded by every provision of that agreement creating the trust. I am not willing to concede that Congress has the power at this late day without the consent of the other party to the agreement to change or alter or modify that turst thus created. Now, Mr. Chairman, I am not going to occupy any more of the time of the committee at this point. We have the print here of the department bill and of the bill that was approved by the General Council. I have not had opportunity to examine the departmental print, and I do not want unnecessarily to take up your time. Therefore, if I oan have until to-morrow morning I think I can state it in much less time than I can now.
The CHAIRMAN. Yes. Mr. Ballinger, are there any members of the General Council who desire to be heard in this connection?
Mr. BALLINGER. No one else for the General Council.
Mr. MERITT. Mr. Chairman, inasmuch as Mr. Ballinger has had considerable time to present his side of the case, we would like to have as much time as has been allowed Mr. Ballinger to present the other side of the case. There will be several gentlemen who will wish to make their statements, but we will keep our arguments within the time allowed to Mr. Ballinger.
The CHAIRMAN. Do you include in that those who oppose the argument on the part of the Red Lake people ?
Mr. MERITT. Yes, sir.
The CHAIRMAN. There is some one here from the Red Lake Band who will speak for them particularly?
Mr. MERITT. Yes, sir.
The CHAIRMAN. And give their reasons for their opposition to the proposition?
Mr. MERITT. Yes, sir.
The CHAIRMAN. I see no reason why the committee would not desire to give you all the time you want to present your side of it. We are ready to discuss this matter from all of its angles, with the hope that we may be able to bring about a solution of the whole situation. Therefore I think the committee is willing to give whatever time is necessary to hear all parties at interest. Do you desire to proceed now, Mr. Meritt?
Mr. MERITT. Yes, sir.
STATEMENT OF MR. EDGAR B. MERITT, ASSISTANT COM
MISSIONER OF INDIAN AFFAIRS.
Mr. MERITT. Mr. Chairman, it is apparent that Mr. Ballinger has given a great deal of thought to this Chippewa situation and a great deal of time has been taken by Mr. Ballinger in preparing his statement before this committee. My time is so fully taken up with other matters in the Indian Bureau that I shall not attempt to answer in detail all of the points brought out by Mr. Ballinger, but I will in an extemporaneous and offhand sort of way attempt to answer some of the points raised by him wherein I believe he may have given the committee a wrong impression regarding some of the facts and circumstances in connection with this Chippewa situation. In my statement to the committee yesterday, I included the report and the bill that had been submitted to the department, referring all the claims of the Chippewa Indians to the Court of Claims. The department is perfectly willing that every claim that the Chippewa Indians have against the Government shall go to the Court of Claims with the right of appeal to the Supreme Court for final adjudication. That is our policy in regard to all Indian claims. We are willing that all Indian tribes in the United States shall have the right to go to the Court of Claims and try out their claims against the Government.
I also included in my statement yesterday the report of the Secretary of the Interior on the bill now under consideration, together with a redraft of that bill, which expresses the views of the department. We took a great deal of time on this bill. Probably more time and attention was given this bill than any other that has come to the Indian Office in a great many months. We had conferences with the various representatives of the Indian Bureau, with Mr. Ballinger, and members of the Chippewa Council; and also with Mr. Peter Graves, who represents the Red Lake Indians, and with Mr. Henderson who represents the Red Lake Indians as their attorney. I believe we have submitted a bill here that is fair to the Chippewa Indians of Minnesota, as well as to the Government. We attempted in that bill to exclude the questions that would go to the Court of Claims for adjudication, in this jurisdictional bill. The question was raised yesterday as to whether or not the two bills should be combined, so that if one bill goes through Congress the other bill would get through. Our position on that point is this. We think that the jurisdictional bill should go through Congress as a separate measure, but we have no objection to the jurisdictional bill being added to the legislative bill, provided the bill is passed by Congress in approximately the form submitted to this committee by the department.
The CHAIRMAN. Right there: Suppose the committee sees fit to rearrange to a considerable extent the bill that you have presented, what effect would that have upon the carrying out of the bill provided we do make some changes and add the jurisdictional section to the bill? Will it have the effect of making it abortive, or anything of that sort ?
Mr. MERITT. We do not want any legislation by Congress regarding controversies as to the title of the Red Lake Reservation. We prefer to have that question go to the courts for final adjudication.
The CHAIRMAN. Will there be an obligation that will make the law negative provided changes are made and the bill goes through as a unit, the two bills together?
Mr. MERITT. That would depend, of course, upon the legislation that was incorporated in the bill. It would be inconsistent for Congress to declare, for example, that the title to the Red Lake Reservation was in the Red Lake Indians, and at the same time submit that question to the Court of Claims for adjudication. I wish at the outset to impress upon this Indian Committee of Congress that the Chippewa situation is very complicated, and there are many factions among the Chippewa Indians representing varying views. During the absence of the chairman and within the last month we had about 20 Chippewa Indians from the Chippewa country protesting against certain recommendations that had been made and they came before this committee and were heard at that time. There has been enacted by Congress legislation regarding the White Earth Reservation.
his legislation is found in the Indian appropriatoin acts of 1906
and 1907. I want to take pointed issue with Mr. Ballinger in his statement that the Indian Bureau is responsible for that legislation. The Indian Bureau had nothing to do with it. We were opposed to the legislation and we think that it resulted in frauds that are probably unparalleled in the history of Indian legislation. That legislation resulted in a large number of the members of the White Earth Reservation being defrauded outrageously of their property rights. The lumbering interests of Minnesota profited to the extent of millions of dollars by that legislation. T. land grafters around that reservation after the lumbering interests had gotten the timber profited very greatly in getting hold of the land of the Indians. The jurisdiction of the department was removed over all adult Indians of less than full blood and we were powerless to protect these White Earth Indians. I wish that the committee might find time to read the report of the congressional committee that investigated these frauds. What is known as the Graham congressional committee went to Minnesota and they have several volumes printed showing the frauds that were perpetrated against those White Earth Indians. They were outrageous. They are unequalled in the history of the Indian Service, and I want it distinctly understood that the Indian Bureau was not responsible for that legislation in any way. Now, Mr. Chairman, with the experience that we had in connection with the White Earth Reservation we have been exceedingly careful as to what legislation was enacted in connection with the Red Lake Reservation. We don't want, a repetition of the White Earth scandals on the Red Lake Reservation. Certain timber interests of Minnesota have had their eyes on the valuable timber on the Red Lake Reservation for many years. t
We do not propose that the lumbering interests of Minnesota shall get the timber on the Red Lake Reservation without adequate compensation to the Red Lake Indians. Mr. Ballinger has referred to the expensive drainage that will be required on the Red Lake Reservation. I wish to invite the attention of the committee to legislation that is now pending before Congress authorizing the drainage of this reservation, and I wish to state that it is perhaps the cheapest drainage connected with any reservation in the United States. It will cost less than $3 per acre to drain the lands of the Red Lake Reservation and make them fit for farming.
The CHAIRMAN. I think Mr. Ballinger stated that it would cost about $250 an acre. * - - - , -- . . .